7 S.E.2d 424 | Ga. Ct. App. | 1940
Lead Opinion
1. Under the Code, § 110-111, a verdict may be amended in substance, before the jury disperses, so as to express the true finding of the jury.
2. But in the present case the court instructed the jury to return a verdict for an amount different from that which the jury had informed the court it intended to find; and consequently the verdict as rendered did not speak the truth as found by the jury.
3. The court erred in overruling the motion for new trial.
1. "A verdict may be amended in mere matter of form after the jury have dispersed; but after it has been received and recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise." Code, § 110-111. Under a proper construction of the provisions *830
of this Code section, where a jury makes a mistake in writing a verdict, and the verdict as returned into court does not express or contain the true finding of the jury, the jury before dispersing may change or modify its verdict in matter of substance so as to express the true intention and finding of the jury. Also see Herndon v. Sims,
2. But in the present case the court instructed the jury to return a verdict for an amount different from that which the jury had informed the court it intended to find, and accordingly the jury returned a verdict for the plaintiff for $50, instead of for $100, which last-mentioned amount the jury had informed the court it intended to find and had found in favor of the plaintiff. This was error on the part of the court, and was evidently brought about by the $50 which was tendered into court by the defendants. Under the verdict and judgment as finally rendered, the plaintiff could collect only $50 from the defendants. The verdict directed by the court did not speak the truth as found by the jury; and consequently the court erred in overruling the plaintiff's motion for new trial.
Judgment reversed. Stephens, P. J., concurs.
Concurrence Opinion
I think the proper way to dispose of this case is for this court to direct that the verdict and judgment be so amended by the lower court as to speak the true finding of the jury. In so doing this court would not violate the principle that this court can not make a verdict. The only error in the case is the judge's misconception of the effect of the deposit with the clerk, and his consequent error in directing a verdict the jury did not find. Since we know what verdict the jury did find, which is undisputed, the ends of justice will be subserved and expense of another trial saved by a simple direction which is in accord with truth and justice, and one which this court has authority to make for the purpose of bringing an end to litigation. *831